Citation Nr: 1335751 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-09 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for right knee disability, including as secondary to a service-connected right knee scar. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to March 1946, including participation in the capture of Iwo Jima during World War II. This appeal to the Board of Veterans' Appeals (Board) arises from January 2009 and November 2010 rating decisions of the Waco, Texas Regional Office (RO) of the Department of Veterans' Affairs (VA). In pertinent part, the January 2009 rating decision denied service connection for hearing loss and tinnitus. The November 2010 rating decision denied service connection for right knee disability. The January 2009 rating decision also denied service connection for left knee disability. The Veteran subsequently filed a notice of disagreement in relation to this denial and a statement of the case was issued in April 2012. However, the Veteran did not subsequently perfect an appeal by filing a VA Form 9. Accordingly, this issue is not currently on appeal before the Board. The Veteran initially requested a Board videoconference hearing in relation to the issues on appeal. However, in August 2011, he withdrew his request for a Board hearing and requested a Decision Review Officer (DRO) hearing. A DRO hearing was scheduled for March 12, 2012. However, the Veteran did not report for the hearing and did not indicate a desire to reschedule. Consequently, the Board finds that his DRO hearing request has also been withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In September 2013, a Veterans Health Administration (VHA) medical opinion pertaining to the Veteran's claims for service connection for hearing loss and tinnitus was received and associated with the record. The Veteran was furnished a copy of the opinion in September 2013 and advised that he had 60 days to submit relevant evidence or argument in response. See 38 C.F.R. §§ 20.901, 20.903. In October 2013, the Veteran responded by submitting additional argument and evidence (i.e. a newspaper article pertaining to noise exposure and hearing loss among farmers) in support of his claim. This argument and evidence has not been reviewed by the RO/AMC. In an October 2013 statement accompanying the additional evidence received, the Veteran asked that the case be remanded for initial review of the additional evidence. Thus, remand of these claims is necessary to comply with the Veteran's request. Regarding the claim for service connection for right knee disability, in a February 2011 statement, the Veteran reported having received private medical treatment and/or evaluation for his knee from a Dr. Young. In a January 2013 response, the RO asked the Veteran to submit a release of information form to allow the RO to obtain records from Dr. Young. As the Veteran did not respond, RO was not able to attempt to obtain the records. More recently, in correspondence received by the Board in October 2013, the Veteran did submit a release of information in relation to Dr. Young. As records from this physician may be pertinent to the Veteran's claim, and as efforts to obtain them must be conducted by the agency of original jurisdiction, the claim for service connection for right knee disability must also be remanded. On remand, the Veteran should also be provided additional VCAA notice addressing his claim of entitlement to service connection for a right knee disability, including as secondary to a service-connected right knee scar. Finally, in light of the additional evidence provided by the Veteran concerning hearing loss and tinnitus, a new medical opinion is required. An opinion as to whether the Veteran's right knee disorder was aggravated by his service-connected right knee scar is also necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a VCAA letter addressing his claim of entitlement to service connection for a right knee disability, including as secondary to a service-connected right knee scar. See 38 C.F.R. § 3.310. 2. Make arrangements to obtain the Veteran's complete treatment records from Thomas C. Young, M.D. See VA Form 21-4142, dated February 20, 2103. 3. Thereafter, return the claims file to the examiner who provided the February 2013 opinion for an addendum, if available. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with providing an opinion. The addendum must contain a notation that the claims file was reviewed. The reviewer must address the following: a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee disorder (i.e., arthritis, patellofemoral pain syndrome, etc.) was caused by the Veteran's service-connected scar of the right knee. b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee disorder (i.e., arthritis, patellofemoral pain syndrome, etc.) was aggravated or permanently worsened the Veteran's service-connected scar of the right knee. c) If it is determined that any current right knee disorder (i.e., arthritis, patellofemoral pain syndrome, etc.) was aggravated by the service-connected scar of the right knee, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. The reviewer must provide an adequate explanation of the underlying reasoning used to render the opinions and should include references to pertinent evidence, regardless of whether the opinion is in favor or against the claim. An inadequate explanation will result in another remand. 4. Arrange for an audiologist to review the Veteran's claims folder. The report must contain a notation that the claims file was reviewed. The reviewer must address the following: a) Is it at least as likely as not (50% or greater probability) that the Veteran's hearing loss had its clinical onset during active service or is related to his noise exposure during service? b) Is it at least as likely as not (50% or greater probability) that the Veteran's tinnitus had its clinical onset during active service or is related to his noise exposure during service? In providing this opinion, the audiologist is asked to review the service treatment records; the newspaper article from the Texarkana Gazette submitted by the Veteran in July 2008; the October 2008 VA audiological examination report; the Veteran's July 2009 statement; the September 2013 VHA opinion; the Veteran's statement dated in September 2013; and the newspaper article submitted by the Veteran concerning farmers being urged to protect their hearing. The reviewer must provide an adequate explanation of the underlying reasoning used to render the opinions and should include references to pertinent evidence, regardless of whether the opinion is in favor or against the claim. An inadequate explanation will result in another remand. 5. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination reports do not include adequate responses to the specific opinions requested, they must be returned to the providing examiners for corrective action. 6. Finally, readjudicate the Veteran's claims based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).